A Short History of Freedom of Information in Independent Ireland

John Dorney looks at secrecy and transparency in independent Ireland.

The Irish state, since gaining its independence in 1922, has been one of the few countries in Europe to maintain an unbroken record of democratic governance.

However, at the same time, this state has also been marked by a certain authoritarianism – defined as “deference to the views of established leaders and intolerance to those who dissent from these views”. Contributing to this has been, “a breakdown in the interface between Ireland’s public institutions and the Irish public” and “a presumption of secrecy that underpinned Irish government since independence”.[1]

A presumption of secrecy has underpinned Irish government since independence

In plain language, until relatively recently, Irish governments and public institutions were very difficult to get information out of and very suspicious of anyone who tried. There has been some movement from this position since the early 1980s, as several pieces of legislation gave progressively more access to the public to state information.

The final victory for Freedom of Information in Ireland appeared to have arrived in 1997, when a coalition government enacted the Freedom of Information Act. This gave members of the public, for the first time, extensive access to state papers, including even cabinet deliberations – which were to be released after five years. However, an amendment to the Act in 2003 significantly restricted the rights to access information that were granted by the original law.

A History of Silence

A monument tothe Ballyseedy massacre of 1923, for which cabinet documents have yet to be released

The Irish state, for most of its history has been far from open with access to its data. To some extent, this attitude can be traced back to the conditions in which the Irish Free State was founded in 1922 – that is, in a civil war between rival factions of the independence movement. Execution, censorship and internment were among the emergency powers enacted by the Dail in November 1922 and another product of those years was extreme secrecy at cabinet level. The cabinet deliberations of the civil war have never been released in their entirety and some of the most controversial cabinet records are only being released now.

To some extent, attitudes to official secrecy can be dated back to the civil war

Many of the Civil War’s darker acts remained state secrets throughout the century. In December 2008, the cabinet records on the killing of five anti-Treaty prisoners at Cahirciveen in Kerry in March 1923 were released, showing that the government knew which troops were responsible but were unable or unwilling to pursue them. Despite requests in the Dail by Sinn Fein TD Martin Ferris, the records on the killing of eight prisoners at Ballyseedy in the same month have yet to be released.[2]

The ongoing danger to the stability of the state posed by political violence in Northern Ireland no doubt also contributed to the culture of official secrecy. Another explanation that has been suggested is a certain deference to leaders in Irish political culture. [3]

Garda commissioner Eoin O’Duffy informed the cabinet of an alarming rate of sexual crime in 1930, the report was buried.

However it was not only in matters of state security that the culture of secrecy prospered. In 1930 the Free State set up a committee under Minister for Justice Carrigan, into sexual offences in Ireland. What they found was profoundly shocking to to a new state that prided itself on its Catholic morality. From 1927 to 1929, Garda Commissioner Eoin O’Duffy told them, sexual assaults on females had risen by 63% and on males by 43%. O’Duffy believed that around 6,000 children had been sexually abused in this three year period alone. [4]

Another state might have used the report to try to reduce such an appalling statistic. The Cumman na nGaedheal government decided instead to bury the report, which was not re-discovered until recent years.

It might, after all, have embarrassed important people to discover that, “ordinary feelings of decency and the influence of religion has failed [to protect children] and the only remedy is police action”. As a result “It is clearly undesirable”, the cabinet was told, “that such a view of condition in the Saostait should be given wide circulation”. [5]

Faced with shocking report into the level of sexual abuse in 1920s Ireland in 1930, the government chose to bury rather than publicise the findings.

Given what we know now about the extent to which sexual abuse existed in Irish society and state institutions in particular in these years, the implications of such an attitude are chilling.

Things were not improved by the Irish Official Secrets Act enacted in 1963. This placed greater emphasis on state security than on openness and transparency. Article 4 states, “A person shall not communicate any official information to any other person unless he is duly authorised to do so or does so in the course of and in accordance with his duties as the holder of a public office or when it is his duty in the interest of the State to communicate it.”

Breaking the Official Secrets Act, 1963, was punishable by up to seven years’ imprisonment

Article 13 goes on to say that, “A person who contravenes or attempts to contravene any provision of this Act shall, without prejudice to any other enactment, be guilty of an offence under this Act.” This offence was punishable by a minimum of a fine and a maximum of seven years imprisonment.

All of this had quite serious consequences. We still have no clear picture, for example, what happened at cabinet level in the turbulent year of 1969-70, when the Northern ‘Troubles’ were errupting. Jack Lynch’s government pondered whether to deploy Irish troops in Northern Ireland and some cabinet members plotted to import arms for the defence of northern nationalists. Was military intervention really contemplated? Was Charles Haughey and Neill Blaney’s arms buying sanctioned? How close did we come to war along the border? We have never really known.

What was more, “Official Information” was understood to include not only cabinet deliberations but also information on the working of public bodies.[6]

Imagne the scenario; a citizen arrives at a public body, such as local planning office, demanding redress of some grievance caused by a state action. Not only were the officials there not obliged to explain their actions, but they could potentially be prosecuted under the Official Secrets Act if they did!

Springs of hope

The first means of redress for those who wanted greater access to this information came in 1980, with the Ombudsman Act, which allowed individual citizens to have their grievances against government departments and local authorities investigated by impartial officials from the Office of the Ombudsman. While not directly concerned with Freedom of Information, this Act put the everyday practices of state bodies under public scrutiny.[7]

The National Archives Act of 1986 allowed a systematic political history of the Irish state to be written for the first time.

More directly relevant was the National Archives Act of 1986, which came into law in January 1991. This act required all public records over 30 years old to be made available to the public (though it remained possible to withhold information relating to state security). This Act allowed, for the first time, a systematic political history of the Irish state to be researched and written. The Act was invaluable for historians but was little help to those investigating a contemporary government.[8]

Two steps forward, one step back – the Freedom of Information Acts, 1997 & 2003

The real watershed for public access to state papers came in 1997, when the so-called “Rainbow Coalition” of Fine Gael, Labour and Democratic Left, passed the Freedom of Information Act 1997, which came into law in April 1998.

The need for more transparency had come to light in the early 1990s, when the Beef Tribunal (set up to investigate irregularities in the export of beef[9]), wished to ask ministers about cabinet discussions. Specifically, the allegations were that major food companies were given preferential treatment by the Fianna Fail government in return for donations to that party.

The need for more transparency became apparent when ministers refused to answer questions at the 1991 Beef Tribunal on the grounds of cabinet confidentiality

The ministers refused to answer on the grounds of cabinet confidentiality and the matter was taken to the Supreme Court, which ruled that cabinet secrecy was a constitutional principle.[10]

As a result, when the “Rainbow” government came to power in 1994, the Minister of State, Eithne Fitzgerald of the Labour Party, began investigating legislation that would lead to greater public accountability. She wrote of, “ “turning the culture of the Official Secrets Act on its head”.[11]

The Freedom of Information Act gave the citizen three new legal rights; the right to consult official records (except those that related to internal security and foreign relations), the right to update and correct personal information that was inaccurate and the right to be given reasons why public decisions were made when they affect the person in question. Access to information included cabinet papers, which would be available to the public after five years. .

The Freedom of Information Act, 1997, gave the citizen three new rights – to see official records, correct personal information and be given the reasons for public decisions.

However, in 2003, the Bill was amended by the Fianna Fail/Progressive Democrat coalition and specifically by the Minister for Finance Charlie McCreevy. Two measures restricted access to official documents in the amendment. One was the introduction of fees to access non-personal information. While the charge for accessing a record is only 15 euro, the researcher is also charged at a rate of 20.95 euros per hour for the work involved in “search and retrieval”. This put the average cost, per request up to 200 euro. [12]

The cost was now prohibitive. This had a marked deterrent effect on the numbers of people making Freedom of Information requests. Such requests dropped by 50% in the year after the amendment was introduced.[14]

The 2003 Amendments have made accessing material under the Freedom of Information legislation prohibitively expensive and has increased the wait for cabinet papers from five to ten years.

The second modification made to the original Act in 2003 was that Cabinet papers were to be withheld for ten years rather than the original five. The ostensible reason for the change was to protect sensitive discussion relating to the Northern Ireland peace process.

Conclusion

Freedom to Ireland? The struggle for accountable government is not yet over.

The Freedom of Information Act was a great step forward for open government in Ireland. However, its weakness is that its effectiveness depends a great deal on the goodwill of those implementing it.

The stimulus for the enactment of the Freedom of Information legislation was the refusal of cabinet members to disclose to Tribunals the contents of cabinet meetings. The ten year delay in releasing such documents means that, by the time the public can be made aware of any (hypothetical) wrongdoing in cabinet, it will be too late to do anything about it.

From this perspective, the Freedom of Information Act fails to make government more accountable.

It is worrying, especially in the light of NAMA and the vast current expenditure of public money on private banks, that information may be withheld if it has “a serious adverse effect on the financial interests of the state”.

Could this be used to block access to affairs which urgently need to be held up to public scrutiny?

Simply put, accountable government is better government. For most ofthe twentieth centuy, Irish government, while democratic, was not in any real sense accountable to its citizens.

According to one analysis, “International experience, while varied, does suggest that such legislation tends to improve standards of administration, as civil servants respond to the fact that documents could be made public quite quickly”. [16]

Simply put, accountable government is better government. For most of the twentieth century, Irish government, while democratic, was not in any real sense accountable to its citizens. One can only hope that in the 21st century it will be more open with and responsive to the ordinary person.

Lohan, Rena, Conrad, Mark, Hannigan, Ken, Jackson, John A, 1996, For the Record, Date Archives, Electronic Archives, Access to Information and the Needs of the Research Community, Institute of Public Administration, Dublin.

[12] Freedom of Information Act 1997, Freedom of Information (Amendment) Act 2003 – Short Guide, p 31Referred to from now on as FOI Act Short Guide. The Freedom on Information Act will be referred to as the FOI Act

• p. 25-26 for an extract on FoI from my 1996 submission to the All Party Oireacthas Committee on the Constitution;
• p. 69 for a 1994 paper calling for FoI given in UCC;
• p. 84 my letters (published in various newspapers) calling for political reform, including FoI;
• p. 121 my letters (published in various newspapers) objecting to the 2003 FoI Act which brought in restriction on the 1997 Act;
• p. 129 letter part of which was published in Sunday Tribune

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